Filed 11/23/22 In re A.L. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re A.L., a Person Coming Under 

the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH 

AND HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

R.L.,

Defendant and Appellant.

 D080798

 (Super. Ct. No. EJ4600)

APPEAL from an order of the Superior Court of San Diego County, 

Gary M. Bubis, Judge. Conditionally reversed and remanded with directions.

Megan Turkat-Schirn, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Claudia G. Silva, County Counsel, Caitlin E. Rae, Chief Deputy County 

Counsel, and Eliza Molk, Deputy County Counsel, for Plaintiff and 

Respondent.
2

R.L. (Father) appeals the juvenile court’s order terminating his 

parental rights to his daughter, A.L., under Welfare and Institutions Code1

section 366.26.2 The sole issue on appeal is whether the San Diego County 

Health and Human Services Agency (Agency) and the juvenile court failed to

conduct an adequate initial inquiry under section 224.2 into A.L.’s possible 

Native American ancestry, as defined by the Indian Child Welfare Act

(ICWA; 25 U.S.C. § 1901 et seq.). The Agency concedes error but contends 

that the error is harmless. We accept the concession but disagree that the 

error is harmless. Rather, applying the standard of prejudice set forth in 

In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.), we conclude 

that the record reveals the existence of readily obtainable information from 

extended family members likely to bear meaningfully on whether the child is 

an Indian child. Accordingly, we find the error prejudicial, conditionally 

reverse the order terminating parental rights, and remand the matter for 

further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND3

In January 2021, the Agency petitioned the juvenile court under section 

300, subdivision (b)(1) on behalf of A.L., because the mother used controlled 

1 Undesignated statutory references are to the Welfare and Institutions 

Code.

2 The court also terminated the mother’s parental rights, but the mother 

did not appeal this order. 

3 Because Father’s sole contention on appeal challenges the Agency’s 

compliance with its section 224.2, subdivision (b) initial inquiry duties, we 

limit our discussion of the facts and procedural history to information 

necessary to determine that issue.
3

substances while pregnant with her. A.L. tested positive for amphetamines 

and opiates at birth and suffered numerous withdrawal symptoms. The 

Agency attached an undated ICWA-010(A) form to its petition, indicating 

that the Agency had no reason to believe the child was an Indian child, but 

the form does not identify the factual basis for this statement. 

The Agency’s detention report stated that the mother denied having 

any Native American ancestry during a January 20, 2021 interview. When 

asked if she had any reason to believe A.L. was an Indian child, the mother 

said no. At this time, Father was still an alleged father and was not 

interviewed, and the mother denied knowing if Father had any Indian 

affiliation. 

At the January 26, 2021 detention hearing, the attorneys for the 

mother and Father denied that either parent had any known Native 

American ancestry. The court then found that ICWA did not apply. It 

appears from the record that the Agency conducted no further ICWA 

inquiries after this hearing. The Agency’s subsequent reports simply indicate 

that “[o]n 01/26/2021, the Court found the Indian Child Welfare Act does not 

apply.” 

As reflected in the Agency’s jurisdiction/disposition report, the Agency 

spoke with the paternal grandmother, a paternal nonrelative extended family 

member (NREFM) C.B.,4 a maternal great aunt, and a paternal great aunt 

about accepting placement of A.L. The Agency also sent letters to three 

paternal aunts or uncles, the paternal grandfather, and the maternal 

4 This individual’s relationship to A.L. is unclear. The Agency identifies 

C.B. as a NREFM. However, during the detention hearing, counsel for 

Father described her as “the sister,” and the mother’s counsel referred to her 

as “the paternal aunt.” 
4

grandfather5 asking if they would be interested in placement. Though the 

letters are not included in the record, the report summarizes the placementrelated information relayed to these individuals. There is no indication in the 

record on appeal that the Agency ever asked any of these relatives about 

A.L.’s possible Native American ancestry. 

An addendum report indicates that the Agency also spoke with

Crystal P., whom Father described as his sister, about possible placement. 

Nothing in the record suggests the question of Native American ancestry was 

raised during this contact. 

After the paternal great aunt declined placement, C.B. ceased 

responding to telephone calls, and the maternal great aunt and Crystal P. 

were deemed ineligible for emergency placement, the Agency focused on 

placing A.L. out of state with the paternal grandmother. During a six-month 

review hearing in October 2021, the court ordered the Agency to place A.L. 

with the paternal grandmother. The paternal grandmother subsequently 

participated in two continued section 366.26 hearings and the contested 

366.26 hearing, but at no point was the issue of potential Native American 

heritage mentioned during any of these proceedings. 

The court terminated both parents’ parental rights at the June 2022 

contested 366.26 hearing. Father timely appealed from the order, 

5 The table listing the names of the individuals the Agency identified as 

“potential relatives” and their relationships to A.L. appears to be riddled with 

errors, with seemingly male relatives listed as aunts or grandmothers and 

apparently female relatives listed as uncles or grandfathers. The individual 

subsequently identified as the maternal grandfather is listed as an 

unspecified “relative.” The individual listed as the second paternal 

grandmother is identified elsewhere in the record as the paternal 

grandfather. Another unspecified “relative,” who likely is the maternal 

grandmother, also received a letter, but her relationship to A.L. is not 

confirmed in the record. 
5

challenging only the court’s ICWA finding, made at the time of the detention 

hearing.6

DISCUSSION

In dependency proceedings, the juvenile court and the Agency have an 

“affirmative and continuing duty to inquire” whether a child “is or may be an 

Indian child.” (§ 224.2, subd. (a).) “This continuing duty can be divided into 

three phases: the initial duty to inquire, the duty of further inquiry, and the 

duty to provide formal ICWA notice.” (In re D.F. (2020) 55 Cal.App.5th 558, 

566 (D.F.).) The Agency’s initial inquiry duty, which is at issue in this 

appeal, includes, but is not limited to, “asking the child, parents, legal 

guardian, Indian custodian, extended family members, others who have an 

interest in the child, and the party reporting child abuse or neglect, whether 

the child is, or may be, an Indian child and where the child, the parents, or 

6 Father did not appeal from the juvenile court’s January 2021 detention 

order in which the court expressly found that ICWA did not apply. 

Ordinarily, “California follows a ‘one shot’ rule under which, if an order is 

appealable, appeal must be taken or the right to appellate review is 

forfeited.” (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 761, 

fn. 8.) However, because the duty of inquiry under ICWA is a continuing one, 

the one-shot rule does not apply here. (See § 224.2, subd. (a); In re Isaiah W. 

(2016) 1 Cal.5th 1, 6 [“Because ICWA imposes on the juvenile court a 

continuing duty to inquire whether the child is an Indian child, we hold that 

the parent may challenge a finding of ICWA’s inapplicability in an appeal 

from the subsequent [termination of parental rights] order, even if she did 

not raise such challenge in an appeal from the initial [detention] order”].)
6

Indian custodian is domiciled.” (§ 224.2, subd. (b).)7 ICWA defines 

“ ‘extended family member’ ” by “the law or custom of the Indian child’s tribe” 

or, absent such law or custom, as “a person who has reached the age of 

eighteen and who is the Indian child’s grandparent, aunt or uncle, brother or 

sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, 

or stepparent.” (25 U.S.C. § 1903(2); § 224.1, subd. (c) [“ ‘extended family 

member’ . . . defined as provided in [§] 1903” of ICWA].) 

We review ICWA findings for substantial evidence, “[b]ut where the 

facts are undisputed, we independently determine whether ICWA’s 

requirements have been satisfied.” (In re D.S. (2020) 46 Cal.App.5th 1041, 

1051.)

Here, Father asserts, and the Agency concedes, that the Agency failed 

to comply with its initial ICWA inquiry obligations under section 224.2

because it did not question the extended family members available to it about 

possible Native American ancestry. We agree.

During the dependency proceedings, the Agency failed to take 

advantage of many opportunities to make ICWA inquiries of readily available 

relatives. The Agency had telephonic contact with the paternal grandmother

and at least one paternal aunt,8 but did not ask either of these family 

7 If the initial inquiry reveals a reason to believe the child is an Indian 

child, then further inquiry into whether there is a reason to know the child is 

an Indian child is required. (D.F., supra, 55 Cal.App.5th at pp. 566–567.) If 

there is reason to know that a child is an Indian child (§ 224.2, subd. (d)), 

then notice must be sent to the pertinent tribe to allow the tribe to make a 

determination regarding the child’s tribal membership. (D.F., at pp. 567–

568.) 

8 Although Agency records are conflicting, it appears Crystal P. is 

Father’s sister and C.B. may also be a sister. The Agency spoke with both 

women. 
7

members whether the child “[was] or may be an Indian child” as required in 

an initial ICWA inquiry. (§ 224.2, subd. (b); Benjamin M., supra, 70 

Cal.App.5th at p. 744 [failure to ask father’s known relatives about possible 

Indian ancestry violated ICWA requirements].) A social worker also spoke 

with a maternal great aunt and a paternal great aunt. Although these great 

aunts do not fall within the definition of “extended family members,” the duty 

of inquiry also extends to “others who have an interest in the child . . . .” 

(§ 224.2, subd. (b); see also In re Dominick D. (2022) 82 Cal.App.5th 560, 564, 

fn. 2, 567 [requiring initial inquiry of a maternal great-grandfather who 

served as the dependent’s caregiver because he was included under “others 

who have an interest in the child”]; In re S.R. (2021) 64 Cal.App.5th 303, 314

(S.R.) [“[t]he statute obligates the court and child protective agencies to ask 

all relevant involved individuals . . . ‘whether the child is, or may be, an 

Indian child’ ”].) Both great aunts were involved in A.L.’s dependency 

proceedings as potential placements, and the maternal great aunt informed 

the social worker in January 2021 that she was in contact with a “maternal 

aunt.” Thus, the Agency should have asked these great aunts whether they 

were aware of any Indian ancestry and requested the maternal aunt’s contact 

information. (See In re K.R. (2018) 20 Cal.App.5th 701, 707–708 [holding 

that “actions [the Agency] was required to undertake” included contacting 

paternal grandfather for paternal great-grandfather’s contact information 

and contacting great-grandmother for information about paternal 

grandfather and paternal great-grandfather].) Finally, the record reflects 

that the Agency had mailing addresses for three paternal aunts or uncles, the 

paternal grandfather, and the maternal grandfather. Even though each of 

these relatives qualifies as an “extended family member,” nothing in the 

record suggests the Agency asked any of them about possible Native 
8

American heritage. In sum, because the Agency’s initial ICWA inquiry was 

inadequate, we conclude there is insufficient evidence to support the juvenile 

court’s finding that ICWA did not apply. 

The parties dispute whether the error was harmless. The Courts of 

Appeal have applied varying analytical frameworks to evaluate whether 

ICWA initial inquiry errors are prejudicial or harmless. We need not address 

these various approaches because this division has adopted the approach 

articulated in Benjamin M., supra, 70 Cal.App.5th 735. (In re Y.M. (2022) 82 

Cal.App.5th 901, 916 (Y.M.).)

Under this approach, “a court must reverse where the record

demonstrates that the agency has not only failed in its duty of initial inquiry, 

but where the record indicates that there was readily obtainable information 

that was likely to bear meaningfully upon whether the child is an Indian 

child.” (Benjamin M., supra, 70 Cal.App.5th at p. 744.) This “standard does 

not require ‘proof of an actual outcome (that the parent may actually have 

Indian heritage).’ [Citation.] The missing information need only be relevant 

to the ICWA inquiry, ‘whatever the outcome will be.’ ” (In re Ricky R. (2022) 

82 Cal.App.5th 671, 679; id. at p. 680 [applying Benjamin M. standard and 

finding reversible initial inquiry error where agency “asked the parents about 

Indian ancestry” but “failed to ask extended family members about it”].)

On this record, we cannot say the Agency’s failure to comply with its 

initial inquiry duties was harmless. Extended family members were readily 

available, and their responses would likely have borne meaningful 
9

information, regardless of the outcome of the inquiry.9 (Benjamin M., supra, 

70 Cal.App.5th at p. 744.) Furthermore, the fact the parents denied any 

Indian heritage does not relieve the Agency of its “broad duty” to inquire of 

readily ascertainable extended family members whether the children are 

Indian children. (In re Y.W. (2021) 70 Cal.App.5th 542, 554.) A contrary rule 

would “ignore[] the reality that parents may not know their possible 

relationship with or connection to an Indian tribe.” (Ibid.; S.R., supra, 64 

Cal.App.5th at p. 314 [“the children’s parents apparently had no idea of their 

family’s connection to the . . . tribe . . . , even though the children’s greatgrandmother was a member”]; see also In re T.G. (2020) 58 Cal.App.5th 275, 

295 [noting that ICWA’s “expansive” duty of inquiry “is premised on the 

commonsense understanding that, over time, Indian families, particularly 

those living in major urban centers . . . , may well have lost the ability to 

convey accurate information regarding their tribal status”]; In re Rylei S.

9 The Agency’s mismatched and confusing records documenting the 

relatives contacted for possible placement also weigh against a harmless 

error finding. As the court said in Benjamin M., “[w]hen assessing whether 

ICWA inquiry error was harmless, a court must know enough about the 

persons contacted to determine if the agency failed to inquire of persons who 

might have helpful information; murky documentation of the agency’s efforts 

may support a reasonable inference that it failed to do so.” (Benjamin M., 

supra, 70 Cal.App.5th at pp. 745–746.) Moreover, we are not persuaded by 

the Agency’s argument that, because these individuals did not respond to the 

placement letters, “[i]t follows that said individuals were similarly 

unavailable for ICWA inquiry.” Requesting that individuals disclose any 

known Native American ancestry imposes a significantly lower burden than 

asking them to take custody of an infant. 
10

(2022) 81 Cal.App.5th 309, 321–322 [same].)10 Thus, we conditionally 

reverse the juvenile court’s order terminating parental rights for a limited 

remand to ensure compliance with the ICWA inquiry obligations.

Given the importance of expediency and need for finality, we encourage 

the parties to stipulate to immediate issuance of the remittitur in this case. 

(Cal. Rules of Court, rule 8.272(c)(1).)

DISPOSITION

The order issued at the June 27, 2022 contested section 366.26 hearing 

is conditionally reversed and the matter is remanded to the juvenile court 

with directions that, within 30 days of the remittitur, the Agency must file a 

report demonstrating its compliance with the initial inquiry provisions of 

10 The Agency analogizes to Y.M., supra, 82 Cal.App.5th 901, in 

suggesting that, given the paternal grandmother’s ongoing involvement with 

the case and Father, Father could have asked her about the family’s Indian 

ancestry. Further, as the individual seeking placement of A.L., the Agency 

argues the paternal grandmother, like the paternal grandfather in Y.M., “had 

a strong incentive to raise any Indian ancestry in support of that goal.” 

(Y.M., at pp. 917–918.) 

Though these facts are superficially similar to Y.M., its holding is not 

so broad. It is not clear from the record before us that Father or paternal 

grandmother had any reason to know or appreciate the significance of Indian 

ancestry. In Y.M., by contrast, a social worker met with the father to discuss 

whether he had any Indian ancestry. (Y.M., supra, 82 Cal.App.5th at p. 906.) 

Here, there is no indication the Agency ever spoke with Father about ICWA 

or that the importance of disclosing Indian heritage was ever explained by 

the Agency or the court during one of the many hearings Father and paternal 

grandmother attended. The record does not include an ICWA-010(A) or 

ICWA-020 form from Father, and the only reference to ICWA with regard to 

him is his attorney’s assertion that “Father indicates no Indian ancestry.” 

Therefore, we are not persuaded that the ICWA inquiry error was harmless 

as to the paternal grandmother. Moreover, a finding of harmless error as to 

the paternal grandmother still would not resolve the issue, as the Agency 

additionally failed to make ICWA inquiries of other readily available 

extended family members, including maternal relatives. 
11

section 224.2, subdivision (b), and, if required, conduct further inquiry under 

section 224.2, subdivision (e). Within 45 days of the remittitur, the juvenile 

court must conduct a hearing to determine whether the Agency’s 

investigation satisfied its affirmative duty to investigate. The juvenile court 

has the discretion to adjust these time periods on a showing of good cause.

If neither the Agency nor the juvenile court has reason to believe or to 

know that the child is an Indian child, the order issued at the June 27, 2022 

contested section 366.26 hearing shall be reinstated by the juvenile court. 

Alternatively, if after completing the inquiry the Agency or the juvenile court 

has reason to believe that the child is an Indian child, the court shall proceed 

accordingly. 

BUCHANAN, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.